Notification Of Appointment Of Attorney In Criminal Proceedings Is Sufficient

Notification Of Appointment Of Attorney In Criminal Proceedings Is Sufficient

Criminal General Assembly 2016/1421 E. , 2020/461 K.

“Case Law Text”

Decision maker
Court of Cassation Chamber : (Closed) 21st Criminal Chamber
Court :Criminal Court of First Instance
Numbers : 166-72

In the public case filed against the defendant … for forgery of official documents and fraud, as a result of the trial, the defendant was sentenced to 3 years and 6 months imprisonment pursuant to Articles 204/1 and 53 of the Turkish Penal Code No. 5237, 2 years and 8 months imprisonment pursuant to Articles 503/1 and 522/1 of the Turkish Penal Code No. 765, and 10. 125 TL judicial fine and deprivation of rights, dated 02.03.2011 and numbered 166-72 given by Yenişehir Criminal Court of First Instance, upon the appeal of the defendant, the 11th Criminal Chamber of the Court of Cassation, which examined the file, dated 24.06.2014 and numbered 11777-12380;
“Pursuant to Article 11 of the Notification Law No. 7201, the notification must be made to the attorney in the works followed by the attorney, and the defence counsel who was present at the interrogation of the defendant and in whose absence the decision was made, was notified to Av. …, the defence counsel who was present at the interrogation of the defendant and in whose absence the decision was rendered, should be placed in the file, otherwise, the file should be sent to the Chief Public Prosecutor’s Office of the Supreme Court of Appeals to be sent to the neighbourhood in order to ensure that the reasoned decision is duly served to the defendant’s defence counsel and that the document related to this and the petition of appeal, if given, are also attached and returned. Criminal Chamber dated 02.12.2015 and numbered 9300-5769
“Pursuant to Article 35 of the Notification Law, although the notification made on 08.07.2011 was not in accordance with the procedure, as stated in Article 32 of the aforementioned Law, ‘even if the notification is made irregularly, it will be valid upon the addressee’s learning’, the defendant, who was informed of the judgement pursuant to Article 20/4 of the Law No. 5275 when he was taken to prison on 01.11.2012, appealed on 27.12.2012. 2012 dated 27.12.2012 was filed after the legal period and it was understood that the defendant’s and the defendant’s lawyer … …, who only participated in the interrogation of the defendant by instruction upon the arrest warrant and then did not give a power of attorney and did not participate in any judicial proceedings, was not the defendant’s defence counsel, the appeal requests of the defendant and the lawyer … … were rejected in accordance with Article 317 of the Code of Criminal Procedure No. 1412, which should be applied in accordance with Article 8/1 of the Law No. 5320.”.
The Chief Public Prosecutor’s Office of the Court of Cassation, on the other hand, with the number 243107 dated 14.10.2016
“…In the examination of the file, when the defence of the defendant was taken by instruction, when the instruction interrogation memorandum of Edremit 3rd Criminal Court of First Instance dated 26.09.2008 and numbered 2008/168 Müt. was examined regarding the defence of the defendant, the defendant stated that ‘I understand my rights as a defendant. I will make a statement. However, I want to be immune from the hearing I will do with my attorney, Attorney …’ and the defence of the defendant was taken in the presence of Attorney …. …, the defendant and his defence counsel did not attend the subsequent hearings in the main court, the verdict was rendered in the absence of the defendant and his defence counsel, the reasoned verdict was served directly to the defendant instead of the defendant’s defence counsel, and in accordance with Article 21/2 of the Notification Law, on 06.07. 2011 to the address stated to be the defendant’s residence address, when the notification report was examined, it was stated that the notification was made to the signature of the village headman since the defendant had left the address, it was not mentioned that the notification was affixed to the door, therefore the notification was irregular,
On 01.11.2012, it was understood that the defendant, who was taken to prison for the execution of the file subject to the appeal, appealed the verdict on 27.12.2012, the Chamber sent the file to the defendant’s defence counsel for the notification of the verdict, the verdict was notified to the defence counsel on 19.08.2014, and the defence counsel appealed the verdict on 26.08.2014.
First of all, instead of serving the verdict to the defendant’s defence counsel who was present in the defendant’s interrogation in the presence of the defendant, it was irregular to serve the verdict directly to the defendant, therefore the appeal made by the defendant’s defence counsel upon the notification made to the defendant’s defence counsel was in due time,

Again, the notification to the defendant dated 06.07.2011 was irregular, there is no notification document stating that the judgement was notified to the defendant in the prison, and there is no document issued pursuant to Article 20/4 of the Law No. 5275 when the defendant was taken to prison, and even if it is accepted that such a document was issued, it cannot be said that the judgement was notified to the defendant who did not know the content of the judgement, and it should be accepted that the defendant who was taken to prison was aware of the judgement on 27. 12.2012, the date on which the defendant appealed the verdict, and since it cannot be mentioned that the verdict was duly notified before 19.08.2014, the date on which the defendant’s defence counsel was notified, it is understood that the defendant’s appeal dated 27.12.2012, which was filed before 19.08.2014, should be accepted in due time in any case.
For these reasons explained, the appeals of the defendant and his defence counsel are in due time and the file should be examined on the merits on appeal”.
The file, which was sent to the First Presidency of the Court of Cassation by the 21st Criminal Chamber of the Court of Cassation (Closed), which conducted an examination pursuant to Article 308 of the Code of Criminal Procedure, with the number 10050-6306 dated 24.10.2016 and the number 10050-6306, on the grounds that the reasons for objection were not deemed relevant, was evaluated by the Criminal General Assembly and decided for the reasons explained.

ON BEHALF OF THE TURKISH NATION
CRIMINAL GENERAL ASSEMBLY DECISION

According to the scope of the objection, the examination is limited to the convictions of the defendant for forgery of official documents and fraud.
The dispute between the Special Chamber and the Chief Public Prosecutor’s Office of the Court of Cassation, which must be resolved by the Criminal General Assembly, concerns the determination of whether the lawyer …, who was present during the defence of the defendant at the Edremit 3rd Criminal Court of First Instance on 26.09.2008 upon arrest, has acquired the title of defence counsel, how the notification of the reasoned decision should be made in this context, and whether the defendant’s appeal petition dated 15.02.2013 can be accepted within the time limit.
From the scope of the examined file;
In the public case filed against the defendant … for forgery of official documents and fraud, the defendant’s statement was not taken during the investigation phase, and during the prosecution phase, upon arrest, at the Edremit 3rd Criminal Court of First Instance, he said “I understand my rights. I will make a statement. However, I will do it together with my attorney …. “, the defendant and the lawyer … with whom he made his defence did not attend the hearings, the lawyer … did not submit a power of attorney to the file, and as a result of the trial, the Yenişehir Criminal Court of First Instance convicted the defendant of the crimes of forgery of official documents and fraud in the absence of the defendant and the lawyer ….,
For the notification of the reasoned decision to the defendant; the reply to the letter sent to Metris T Type Closed Penal Execution Institution No 1 was that the defendant was transferred to Silivri L Type Closed Penal Execution Institution No 1 on 18.03.2011, and the reply to the letter sent to Silivri L Type Closed Penal Execution Institution No 1 was that the defendant was released on 16.04.2011, and both letters stated that the decision could not be notified to the defendant,
Thereupon, the Local Court, in the notification part related to the notification issued to the defendant’s address “Soğanyenmez Mah. … Edremit/Balıkesir”, which the defendant declared when he gave his statement at the Edremit 3rd Criminal Court of First Instance; the information that the notification was returned on the grounds that the defendant was not recognised by name; in the notification part related to the notification made to the address “… Çataltepe Köyü Kestel/Bursa”, which appeared as the defendant’s mernis address at that time, the information that the reasoned decision was served to the signature of Ünal Yılmaz, the village headman, on 08.07.2011 in accordance with paragraph 2 of Article 21 of the Notification Law. Article 21, paragraph 2 of the Notification Law contains the information that the reasoned decision was served to the signature of Ünal Yılmaz, the village headman, on 08.07.2011, but in the notification made in accordance with paragraph 2 of Article 21 of the Notification Law, there is no statement that the notice containing the address of the receiver was affixed to the door of the building at the address shown,
Upon the notification made by the Local Court pursuant to paragraph 2 of Article 21 of the Notification Law, the judgements were finalised and the defendant was arrested on 01.11.2012 and taken to prison, and in the prison, the defendant was made to sign and was given a copy of the sentence sheet dated 08.11.2012, which contained the cumulative sentence of 5 years and 14 months imprisonment, which is the cumulative sentence of the convictions established for the crimes subject to the case,

The defendant applied to Yenişehir Chief Public Prosecutor’s Office and Yenişehir Criminal Court of First Instance with two separate petitions dated 27.12.2012 and requested a stay of execution by mentioning that the sentences were sent to the Supreme Court and finalised without his knowledge, these requests were rejected, the defendant appealed the sentences with a petition dated 15.02.2013 and the Local Court sent the file to the Supreme Court by issuing a report dated 18.02.2013,
The 11th Criminal Chamber of the Court of Cassation, which examined the judgements appealed by the defendant, stated that: “As the notification must be made to the attorney in the works followed by the attorney pursuant to Article 11 of the Notification Law No. 7201, since there is no document indicating that the defence counsel, who was present at the interrogation of the defendant and in whose absence the decision was made, was notified to the defence counsel, Av. …, if any, to be placed in the file, otherwise, to ensure that the reasoned decision is duly served to the defendant’s defence counsel and that the file is returned to the Chief Public Prosecutor’s Office of the Court of Cassation to be sent to the neighbourhood in order to ensure the return of the file by adding the relevant document and the petition of appeal if it is given” and in accordance with this decision, the Local Court decided that the reasoned decision was served to the defendant’s defence counsel on 19. 08.08.2014, the defence defence defence appealed the judgement on 26.08.2014, and the 21st Criminal Chamber of the Court of Cassation (Closed), which examined the file with the additional notification prepared by the Chief Public Prosecutor’s Office of the Court of Cassation. The Criminal Chamber of the Court of Cassation (Closed), on the other hand, stated that “Pursuant to Article 35 of the Notification Law, although the notification made on 08.07.2011 was not in accordance with the procedure, as stated in Article 32 of the aforementioned Law, ‘even if the notification is made irregularly, it will be valid upon the addressee’s learning’, the defendant, who was informed of the judgement pursuant to Article 20/4 of the Law No. 5275 when he was taken to prison on 01.11.2012, appealed on 27.12.2012. 2012 dated 27.12.2012 was filed after the legal period and it is understood that the defendant’s and lawyer … …’s appeal requests were rejected in accordance with Article 317 of the Code of Criminal Procedure No. 1412, which should be applied in accordance with Article 8/1 of the Law No. 5320,
Namely, I have never been issued a power of attorney in this file and I have never undertaken the defence of this file. It is not possible for me to gain the title of attorney without a power of attorney in the file. I believe that the fact that I participated in the investigation as the defence counsel of the defendant in one of his statements during the investigation phase may have caused this mistake. However, the defendant has never issued a power of attorney to me. The reasoned judgement sent to me must be served to the defendant. For this reason, I respectfully request that the defendant be notified again and that the notification sent to me by mistake be disregarded.”
It is understood that
The first paragraph of Article 36 of the Constitution titled “Freedom to seek justice” reads as follows
“Everyone has the right to claim and defend himself as a plaintiff or defendant before the judicial authorities and to a fair trial by making use of legitimate means and ways…”,
The first and second paragraphs of Article 40 entitled “Protection of fundamental rights and freedoms” read as follows
“Everyone whose rights and freedoms recognised by the Constitution are violated has the right to request that the competent authority be provided with the opportunity to apply without delay.
The State is obliged to specify in its proceedings the legal remedies and authorities to which the persons concerned shall apply and the time limits…” Article 36 of our Constitution states that everyone has the right to a fair trial with claim and defence as plaintiff or defendant before the judicial authorities by making use of legitimate means and remedies, and Article 40 states that everyone whose rights and freedoms recognised by the Constitution are violated has the right to request that the competent authority be provided with the opportunity to apply without delay.
The second paragraph of Article 34 of the Code of Criminal Procedure titled “Justified decisions” reads as follows
“Decisions shall specify the legal remedy that may be applied, its duration, authority and forms”,
Article 40 titled “Restitution” reads;
“(1) A person who, through no fault of his/her own, has missed a period of time may apply for reinstatement.
(2) If the person is not notified of his/her right to apply for legal remedy, he/she shall be deemed to be faultless.” Article 34 of the Code of Criminal Procedure emphasises that the legal remedy notification in the judgements and decisions must include the legal remedy, authority, method and duration.

In the first paragraph of Article 40 of the same Law, it is stated that the person who has exceeded a period of time without any fault may request reinstatement, and in the second paragraph, it is stated that if the person is not notified of the right to apply for legal remedy, the person will be deemed to be faultless.
At this stage, it is useful to focus on the announcement and notification of the decisions and the appeal request and its duration.
Paragraph 2 of Article 35 titled “Announcement and Notification of Decisions” of the Code of Criminal Procedure No. 5271 stipulates that “Except for those related to protection measures, the decisions of the judge or the court, against which a legal remedy may be applied, shall be notified to the person concerned who cannot be present.” Thus, it is regulated as a legal obligation that in order to conduct the appellate review, it must be ensured that those who have the right to apply for the legal remedy of appeal learn about the decision through announcement or notification.
The first paragraph of Article 310 of the Code of Criminal Procedure No. 1412, which must be applied as of the date of the decision pursuant to Article 8 of the Law No. 5320; “The request for appeal shall be made by submitting a petition to the court that rendered the judgement within one week after the announcement of the judgement or by a statement to the clerk of the minutes. The statement shall be recorded in the minutes and the minutes shall be certified by the judge.” The second paragraph reads as follows: “If the pronouncement of the verdict was made in the absence of the defendant, this period shall start from the date of notification.” It is stated that the appeal period shall start with the pronouncement of the verdict in the judgements rendered face to face and with the notification of the reasoned decision in the judgements rendered in the absence.
It is important to examine the issue of the address at which the persons who are the addressees of the transaction should be notified and which articles of the Notification Law No. 7201 should be notified to the persons who are the addressees of the transaction and which articles of the Notification Law No. 7201 should be taken into consideration, after explaining the request for appeal and the period of appeal.
Article 10 of the Notification Law No. 7201 titled “Notification at a known address” reads as follows
“Notification shall be made to the person to be notified at the last known address.
In case it is understood that the last known address is not suitable for notification or notification cannot be made, the address of the addressee’s residence in the address registration system is accepted as the last known address and notification is made there.
Provided that; it is permissible to serve notification anywhere, provided that the person to be notified applies or accepts.”.
Accordingly, notification shall be made primarily at the last known address of the person to be notified. The address may be the address of the addressee’s residence or workplace. In determining the last known address, the declaration of the person requesting notification, notifications of the addressee or other relevant persons or existing documents shall be taken as basis. However, in cases where it is understood that the address notified to the authority issuing the notification is not suitable for notification or notification cannot be made to this address, the address of the addressee in the address registration system (MERNIS) according to the Population Services Law No. 5490 shall be accepted as the last known address and notification shall be made there (Canan Ruhi, Ahmet Cemal Ruhi, Notification Law, Seçkin Publishing House, p. 82.)
The method of notification to the address in the address registration system (MERNIS) is stated in paragraph 2 of Article 21 titled “Impossibility of notification and refusal to notify” of the aforementioned Law;
“The address shown is the address of the addressee in the address registration system, and even if the addressee has never lived at that address or has permanently left that address, the notification officer delivers the document to be notified to one of the headman or one of the members of the council of elders of that place or to the chief or officers of the police in return for signature and affixes the notice containing the address of the receiver to the door of the building at the address shown. The date the notice is affixed to the door shall be deemed as the date of notification.”
In terms of its relevance to our subject, it is also necessary to mention in which cases the improper notification will be valid.
Article 32 of the Notification Law No. 7201 titled “Judgement of improper notification” reads as follows
“Even if the notification is made in violation of the procedure, it shall be deemed valid if the addressee is aware of the notification.
The date declared by the addressee shall be deemed as the date of notification.”,
Article 53 of the Regulation on the Implementation of the Notification Law titled “Judgement of Improper Notification” is as follows
“(1) Even if the notification is made in violation of the procedure, it is valid if the addressee has learnt the notification. Otherwise, the notification is deemed not to have been made. The addressee shall be deemed to have learnt the notification if he/she receives the notification document or invitation or learns the content thereof in any way whatsoever.
(2) The date on which the addressee declares that he/she has learnt the notification shall be deemed as the date of notification
(3) In the event that the notification has been made in violation of the procedure, it is not possible to claim and prove that the addressee has learnt the notification and its date.” It is accepted that the notification will be valid on the date when the defendant declares that he/she has learnt the notification or reveals this with his/her behaviour and actions.

According to the practices maintained by the Criminal General Assembly and the Criminal Chambers of the Court of Cassation in a manner that leaves no room for doubt; since the appeal period will not start to run in cases where the judgement established in absence is not duly notified to those who have the right to appeal, the appeal petitions filed upon learning are accepted to be in time.
On the other hand, Article 11 of the Notification Law No. 7201 titled “Notification to the attorney and legal representative” states
“Notification shall be made to the attorney in the works pursued by proxy. If the attorney is more than one, it is sufficient to notify one of them. If the notification is made to more than one proxy, the date of notification to the first of them shall be deemed as the date of actual notification. However, the provisions of the Code of Criminal Procedure regarding the notification of the decisions to the defendants are reserved.” and it is regulated as mandatory that the notification must be made to the attorney in the works pursued through the attorney.
At this stage, in terms of its relevance to our subject, it is useful to examine whether it is mandatory to have a power of attorney given to the lawyer by the defendant in order to gain the title of defence counsel.
Article 149 of the Code of Criminal Procedure titled “Selection of the defence counsel by the suspect or the accused”
“The suspect or the accused may benefit from the assistance of one or more defence counsel at every stage of the investigation and prosecution; if he has a legal representative, he may also choose a defence counsel for the suspect or the accused.
In the investigation phase, a maximum of three lawyers may be present at the statement-taking.
At every stage of the investigation and prosecution phases, the right of the lawyer to meet with the suspect or defendant, to be present during the interrogation or interrogation and to provide legal assistance cannot be prevented or restricted.” It is clear that the lawyer who provides legal assistance to the suspect or defendant is not obliged to submit a power of attorney to the court.
In Article 261 of the Code of Criminal Procedure titled “Right of the lawyer to appeal”; “The lawyer may appeal to legal remedies provided that it is not contrary to the express wish of the persons for whom the lawyer acts as defence counsel or attorney.” With this provision, the lawyer is given the right to appeal in the absence of a clear opposition of the defendant in the file, and again, similar to Article 149 of the Code of Criminal Procedure, it is not stipulated that the lawyer must have a power of attorney.
In order to acquire the title of defence counsel and to exercise the powers granted by this duty, a power of attorney agreement is required between the parties. This contract does not necessarily have to be in the form of a written power of attorney issued by a notary public, and it is sufficient to duly notify the court that the lawyer has been appointed as an attorney in criminal proceedings law. However, it is known that it is common in practice to authorise a defence counsel with a power of attorney issued by a notary public.
In this context, there is no doubt that the lawyer, whom the defendant comes to the hearing together with the defendant and declares his acceptance as his defence counsel in the presence of the judge, will gain the title of defence counsel and may also apply for legal remedies, provided that it is not against the express wish of the defendant, whom he assists.
The decisions of the Criminal General Assembly dated 09.12.1974 and numbered 282-447, dated 20.04.1992 and numbered 86-105, dated 20.10.1975 and numbered 7-7 of the Unification Board of Jurisprudence have reached the same conclusion in this respect.
When the subject of dispute is evaluated in the light of these explanations;
The defendant, who was taken to prison on 01.11.2012 for the execution of these judgements upon the finalisation of the convictions established by the Local Court against the defendant for the crimes of forgery of official documents and fraud, according to the notification dated 08.07.2011 made in accordance with paragraph 2 of Article 21 of the Notification Law, appealed the judgements with a petition dated 15.02.2013, and the 11th Criminal Chamber of the Court of Cassation, which examined the file in accordance with the request for appeal; According to Article 11 of the Notification Law, the defendant, who was taken to prison for the execution of these judgements, appealed the judgements with a petition dated 15.02.2013. According to Article 11 of the Notification Law, it is understood that the notification should be made to the attorney in the works pursued by the attorney, and upon the decision of the Local Court that the notification should be made to the lawyer …, with whom the defendant stated that he wanted to make his defence together during the statement of the defendant during the prosecution phase, the Local Court notified the decision to the lawyer … on 19.08.2014, and the said lawyer appealed the conviction sentences established against the defendant on 26.08.2014.
Although the Special Chamber, which examined the file, decided to reject the appeal requests of the defendant and his defence counsel on the grounds that the notification made to the defendant on 08.07.2011 was not in accordance with the procedure, the appeal request of the defendant, who was only informed of the verdict when he was taken to prison on 01.11.2012, was after the legal period, and that the lawyer …, who participated in the interrogation of the defendant upon his arrest and then did not submit a power of attorney and did not participate in any judicial proceedings, did not have the title of defence counsel of the defendant;

During the prosecution phase, upon arrest, the defendant said at the Edremit 3rd Criminal Court of First Instance, “I understand my rights, I will make a statement, but I will do it together with my attorney … . “, it is not necessary to have a written power of attorney between the defendant and his lawyer or to submit to the court a power of attorney that proves the power of attorney agreement between the parties, and it is sufficient to duly notify the court that the lawyer has been appointed as a proxy in the criminal proceedings law. ‘s attorney by stating that he is the attorney of the defendant and that he will make his defence together, and that the defence of the defendant was taken in the presence of the defence counsel notified by the Court, thus it should be accepted that Attorney … has acquired the title of defence counsel even though there is no power of attorney in the file.
In this case, in accordance with Article 11 of the Notification Law No. 7201, the notification must be made to the attorney in the works followed by the attorney, the valid notification regarding the notification of the reasoned decision within the scope of the file is the notification dated 19.08.2014 made by the Local Court to the defendant’s defence counsel after the transfer decision of the 11th Criminal Chamber of the Court of Cassation, the notifications made earlier cannot be accepted as procedural, and the defendant’s defence counsel’s appeal petition submitted on 26.08.2014 as a result of the notification made to him was in due time,
On the other hand, within the scope of the file, there is no document indicating that the reasoned decision was notified to the defendant, who was taken to prison on 01.11.2012 for the execution of the judgements subject to the case, and that only the time sheet dated 08.11.2012, which contains the cumulative sentence of 5 years and 14 months imprisonment, which is the cumulative sentence of the convictions established for the crimes subject to the case, was signed by the defendant and a copy of it was given on the specified date. 2012 dated time sheet was signed by the defendant and a copy of it was given to the defendant on the specified date, and from the content of the time sheet, which does not show the legal remedy, authority and period of time that the defendant will apply against the convictions established against him, it is not possible for the defendant to understand which court, for which crimes and the amount of the sentence imposed, and even if it is understood, the notification made in this way in finalised form is misleading to the defendant. 02.02.2013 dated appeal should be accepted as an appeal application made in due time upon learning on the date of filing the petition,
It has been concluded.
In this respect, since Lawyer … has acquired the title of defence counsel for the defendant, the appeal petitions of the defendant and his defence counsel are in due time and the judgements established against the defendant should be examined on the merits within the scope of both appeal requests, it should be decided to send the file to the Chief Public Prosecutor’s Office of the Court of Cassation to be sent to the 11th Criminal Chamber of the Court of Cassation, to which the works belonging to this Chamber were transferred in accordance with the same decision due to the closure of the 21st Criminal Chamber of the Court of Cassation with the decision of the First Presidency Board of the Court of Cassation dated 22.12.2016 and numbered 398 in order to examine the merits of the judgements established against the defendant.

CONCLUSION:

For the reasons explained;
1- The objection of the Chief Public Prosecutor’s Office of the Court of Cassation shall be ACCEPTED,
2- The decision of the 21st Criminal Chamber of the Court of Cassation (Closed) dated 02.12.2015 and numbered 9300-5769 regarding the rejection of the appeal requests regarding the convictions of the defendant for forgery of official documents and fraud is hereby annulled,
3- It was unanimously decided at the discussion held on 17.11.2020 to refer the file to the Chief Public Prosecutor’s Office of the Court of Cassation to be sent to the 11th Criminal Chamber of the Court of Cassation to examine the merits of the judgements against the defendant, due to the closure of the 21st Criminal Chamber of the Court of Cassation with the decision of the First Presidency Board of the Court of Cassation dated 22.12.2016 and numbered 398, in accordance with the same decision.

 

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